RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-03906

   						COUNSEL:  

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

1.  His pay grade be changed from Staff Sergeant (SSgt/E-5) to Captain (Capt/O-3E), effective 30 Jun 06.  

2.  His retired rank be changed from First Lieutenant (1Lt) to Capt, effective 30 Jun 06.

APPLICANT CONTENDS THAT:

1.  While serving in the grade of Capt, he was subjected to a court-martial, but only received a reprimand.  However, he was unfairly denied reassignment and forced out of the Air Force 4 months before completing 10 years of commissioned service.  His strong service record warrants upgrade to the highest grade in which he served.  

2.  There were legal issues associated with his court-martial.  Specifically:

	(a)  The applicant’s full record was not made available to, nor considered by, the Court.  The Court remarked it had never seen this happen before. 

(b)  Four months before he was charged, the United States Court of Appeals for the Armed Forces (USCAAF) dramatically changed the military law concerning private, consensual, homosexual sodomy by their decision in the case of U.S. v XXXXXX, however, the military judge failed to tell the applicant’s jury about this relevant change.  

(c)  There was undue command influence (UCI) which tainted the court-martial proceedings.  The Article 32 Investigating Officer recommended the case be handled administratively.  The decision to go to trial reveals the command “interest” at a very high level, and the trial record reveals “interest” by the Turkish government.  

(d)  The Trial Judge illustrated extreme bias about and against homosexual sex—although in this instance it was private and consensual. Base on his comments, Defense Counsel moved the Trial Judge recuse himself, but he refused. 

(e)  The primary witness against the applicant was not credible, and had ulterior motives.  The facts established he was angry at and had a personal vendetta against the applicant.  

(f)  The Trial Judge stated the applicant’s behavior was “unbecoming” because it involved a Turkish National.  There is absolutely no evidence of this.  There is no precedent that a military member’s actions should be held to a higher standard in a foreign country.  The evidence was not sufficient to prove the alleged conduct was “unbecoming an officer and a gentleman.  

3.  The law concerning private homosexual conduct has changed since his separation, and he should be allowed to retire in the grade of Capt. 

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS:

The applicant initially enlisted in the Air Force on 21 Apr 80.

On 14 Apr 92, the applicant was issued an Honorable discharge, with a narrative reason for separation of “Expiration of Term of Service,” and was credited with 11 years, 11 months, and 24 days of active service this period.  

On 17 Apr 92, the applicant was appointed to the grade of second lieutenant to serve as a Chaplain Candidate. 

On 5 Apr 97, the applicant began serving on active duty as a Chaplain. 

On 7 Jun 05, while stationed in Turkey, the applicant was tried at a General court-martial on two counts of committing sodomy with civilian males (Turkish Nationals) in violation of Article 133 UCMJ, and one count of making a false official statement in violation of Article 107 UCMJ.  The applicant was found guilty of one specification of sodomy, but was found not guilty of the second charge of sodomy and not guilty of making a false official statement. 

Under General Court-Martial Order No. 2, 10 Jan 06, the applicant was sentenced to a reprimand and to be dismissed from the service.  However, the Convening Authority only approved the portion of the sentence which called for a reprimand.  

On 17 May 06, AFPC notified the applicant he was authorized to enlist in the Regular Air Force in the grade of SSgt with a date of rank of 1 Apr 86 for the purpose of immediate retirement because he did not meet the requirement of serving 10 years in order to retire as an officer.  

On 20 Jul 06, the Secretary of the Air Force Personnel Council (SAFPC) determined the applicant did not serve satisfactorily in the grade of Capt within the meaning of Title 10, USC § 8964, but did serve satisfactorily in the grade of 1LT.  

Under Special Order No. AC-013489, dated 11 Sep 06, the applicant was retired in the grade of SSgt, effective 1 Jul 06, after serving 21 years, 2 months, and 9 days of active service for retirement.  Special Order No. AC-013489 also directed the applicant be advanced to the grade of 1LT on the Retired List, effective 22 Apr 15, upon completing 30 years of service.  

According to the documentation submitted by the applicant:

a.  On 21 Jan 05, the applicant submitted a signed memorandum to the Investigating Officer on his case, stating in part, “…I believe I have earned the privilege to retire.  I want you to know that I am willing to go on terminal leave and retire at the earliest opportunity. In his regard, please consider that, at the latest, I am eligible to retire on 1 May 05.  It is possible that I could retire earlier, but I haven’t yet received a clear response from AFPC concerning how my Reserve service will be credited.  I could go on terminal leave within a few weeks…”

b.  The applicant submitted a Personal Statement to the Court, which stated in part, “Members, I know my Air Force career is over.  I accept that.  But, I am eligible to retire and I am willing to put in my paperwork as soon as possible to retire.  In fact, I am willing to put in my retirement paperwork tomorrow.  I respectfully ask that you not dismiss me with a punitive discharge.”  

c.  On 12 Aug 14, the applicant applied to the AFBCMR to request a DD Form 214, Certificate of Release or Discharge from Active Duty.  On his signed DD Form 214 we wrote, “I was court martialed as a captain, but resigned my commission and retired as an E-5.” 

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPRs), which are attached at Exhibits C, D, E, and I.

AIR FORCE EVALUATIONS:

AFPC Retirements recommends denial indicating there is no evidence of an error or an injustice.  AF policy allows for an officer to request to resign and retire, if eligible, in enlisted status only if the officer has an extreme hardship uncommon to other AF members.  AFI 36-3208, Administrative Separation of Airmen, paragraph 3.7, states “officers with 20 years TAFMS who wish to retire before completing 10 years of active commissioned service must first request and be approved for resignation or release from active duty according to AFI 36-3207, Separating Commissioned Officers.  They must also be accepted for, and enlisted in, the Regular Air Force for the purpose of retirement;” and, “For regular or reserve commissioned officers to be eligible for retirement under 10 USC §8911, they must not only have 20 years of active service but also a minimum of 10 years of active commissioned service to retire as an officer. Without meeting both of these requirements, they are ineligible for retirement as an officer regardless of TAFMS.”  

The applicant, after serving as an active duty Capt, retired effective 30 Jun 06 in the grade of SSgt because, although he had 20 years Total Active Federal Military Service (TAFMS), he did not have sufficient Total Active Federal Commissioned Service (TAFCS) to retire as an officer under Title 10, USC § 8911.  He only served 9 years, 2 months and 2 days TAFCS as of his retirement date.  Additionally, SAFPC found the applicant had not served satisfactorily in the higher grade of Capt within the meaning of Title 10, USC § 8964.  

A complete copy of the AFPC Retirements evaluation is at Exhibit C.

AFLOA/JAJM recommends denial of the applicant’s request based upon the fact the applicant’s contentions concerning legal errors during the applicant’s court-martial are not substantiated, indicating there is no evidence of an error or an injustice.  In accordance with Title 10 USC, § 1552(f), the Board has no authority to overturn a court-martial conviction, but may, on the basis of clemency, adjust the sentence.  Subsequent to his court-martial conviction, the applicant submitted an application for retirement.  

Following the applicant’s court-martial, the Judge Advocate General (TJAG) certified two issues in this case for review by the Air Force Court of Criminal Appeals (AFCCA).  Specifically, the TJAG asked if the conviction should be set-aside in light of the prior cases of XXXXX v. Texas or United States v XXXXX, and if the military judged erred when instructing the court members during the findings portion of the trial by not including the enumerated factors identified by CAAF in XXXXXX in his discussion of the elements of the convicted offense.  The AFCCA granted the applicant leave to submit any additional allegations of error for their consideration.  As a result of the applicant’s submission, AFCCA addressed whether:

(1)  After XXXXXXXXX, the appellant's private, consensual homosexual sodomy is constitutionally protected. 

	(2)  The military judge erred by not allowing the members to determine whether the appellant's consensual homosexual sodomy involved: (a) a protected liberty interest, (b) factors that exclude it from protection, and/or (c) factors relevant solely in the military environment that excluded it from protection; and 

	(3)  The military judge abused his discretion by refusing to grant the appellant's recusal motion after the military judge stated the following in denying the appellant's motion for appropriate relief: "I cannot conceive of a situation, given the allegations and what I know about the case now, where I would conclude that the sodomy was not disgraceful."  

Further, in this AFBCMR application, the applicant alleges the following five defects in the court-martial proceedings led to his Article 133, UCMJ conviction for conduct unbecoming an officer and a gentleman: 

(1)  The military judge erred by not instructing the panel members on the XXXXX factors when assessing the accused’s culpability for allegedly violating Article 133, UCMJ, by engaging in “unnatural carnal copulation.”

(2)  The military judge was biased and erred by not recusing himself.

(3)  The primary witness against the applicant was not sufficiently credible.

(4)   The evidence adduced at trial was not sufficient to prove that the alleged conduct was “unbecoming an officer and a gentleman.”  

(5)  Unlawful command influence (UCI) tainted the court-martial proceedings.

In answering the questions presented to it by TJAG and the applicant, AFCCA determined while consensual homosexual activity is a constitutionally protected liberty, Article 133, UCMJ, can lawfully prohibit constitutionally protected acts if, under the circumstances, those acts are of a disgraceful or dishonorable nature, sufficient to compromise the person’s standing as an officer.  The AFCCA also found the so-called XXXXXX factors were not questions of fact for a jury panel to consider, but were questions of law, and the judge did not err in not instructing the member on XXXXXX before deliberations.  In addition, the AFCCA found “…no actual or implied bias or prejudice and [found] the military judge did not abuse his discretion by denying the appellant’s recusal motion.”  Alleged errors concerning witness credibility and sufficiency of the evidence were questions of fact for the officer panel during the court-marital. The panel was convinced beyond a reasonable doubt the evidence proved the applicant committed sodomy and this act constituted conduct unbecoming an officer and a gentleman.  Additionally, the issue of unlawful UCI was not previously raised at trial or on appeal.  In United States v. XXXXXX, the CAAF held UCI allegations are waived if not raised at trial, unless the UCI prevented counsel from doing do.  Because the applicant did not raise the prospect of UCI at the trail or appellate levels, despite having access to all the information that forms the basis of the UCI claim raised in this AFBCMR application, the issue has arguably been waived.   

Nothing about the applicant’s bare allegations demonstrate his court-martial itself was unfair.  AFLOA found no error in law or fact.  Recommend relief not be granted on the basis of legal error during the applicant’s court-martial because AFLOA/JAJM finds none in law or in fact.  

A complete copy of the AFLOA/JAJM evaluation is at Exhibit D.

SAF/MRBP does not make a recommendation.  Subsequent to his approved retirement, pursuant to Title 10, USC § 8964, Higher Grade after 30 Years of service: warrant officers and enlisted members, and AFI 36-3203, Service Retirements, 12 Sep 03, paragraph 7.4, SAFPC boarded the applicant's record to determine the highest grade he held on active duty satisfactorily.  SAFPC determined the applicant did not serve satisfactorily in the higher grade of Capt within the meaning of Title 10 USC, § 8964, but did serve satisfactorily in the grade of 1LT.  Consequently, SAFPC directed the applicant be advanced on the retired list to the grade of 1LT (0-2E), effective 21 Apr 15.  The applicant has not raised any issues of error or impropriety in the action taken by SAFPC and none were found in a review of the available records.  The action taken by SAFPC was required based on the applicant's retirement as an enlisted member and was conducted in accordance with applicable statute and policy.

A complete copy of the SAF/MRBP evaluation, with attachments, is at Exhibit E.

APPLICANT'S REVIEW OF AIR FORCE EVALUATIONS:

In further support of his initial request the applicant, through counsel, submitted a rebuttal to the Air Force evaluations reiterating many of the same points made in his initial application.  In addition, he contends on 23 May 13 the United States Court of Appeals of the Armed Forces rendered a decision in United States v XXXXXXXXXX, which showed failure to charge board members on the XXXXX factors constituted a denial of due process.  It was only in this XXXXXXX opinion the injustice in the applicant trail was confirmed.  Therefore, this application is within the three years of discover of the alleged error or injustice.  The applicant also takes exception to the statement in the AFPC Retirements Evaluation claiming he only served 9 years, 2 months, 2 days of total active federal commissioned service (TAFCS), arguing the 30 days of leave he sold back to the Air Force was not counted and his 30-day tours on active duty while attending Chaplain School were also not counted.  Finally, he argues the Air Force evaluation did not respond to many points in the original application such as trial errors, UCI, court bias, witness credibility, or sufficiency of evidence. (Exhibit G)

ADDITIONAL AIR FORCE EVALUATION:

The Under Secretary of Defense for Personnel and Readiness [OSD(P&R)] issued policy memorandum, Correction of Military Records Following Repeal of Section 654 of Title 10, United States Code, dated 20 Sep 11, which states in part, “…the issuance of a discharge under DADT or the taking of an action pursuant to DOD regulation related to a discharge under DADT should not by itself be considered to constitute an error or injustice that would invalidate an otherwise proper action taken pursuant to DADT and applicable DoD policy.  Thus, remedies such as correcting a record to reflect continued service with no discharge, restoring to a previous grade or position, credit for lost time, or an increase from separation pay or from half separation pay to full separation pay, would not normally be appropriate.”  

A complete copy of the OSD(P&R) Memorandum, with attachment, is at Exhibit H.

APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION:

A copy of the OSD(P&R) Memorandum was forwarded to the applicant on 30 Nov 16 for review and comment within 30 days (Exhibit I).  As of this date, no response has been received by this office.

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  We took notice of the applicant’s complete submission in judging the merits of the case; however, we agree with the opinions and recommendations of the Air Force offices of primary responsibility (OPRs) and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  While the Board notes the applicant’s contention that the laws concerning homosexual conduct changed after his retirement, in accordance with OSD(P&R) memo, Correction of Military Records Following Repeal of Section 654 of Title 10, United States Code, dated 20 Sep 11, a discharge under DADT should not by itself be considered to constitute an error or injustice that would invalidate an otherwise proper action taken pursuant to DADT and applicable DoD policy, and after a proper action restoration of a member to a previous grade or position would not normally be appropriate.  For the reasons set for the multiple Air Force evaluation, the Board is convinced the applicant received due process, and given his court-martial conviction, the highest grade in which he served satisfactorily was 1LT.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.

THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not demonstrate the existence of material error or injustice; the application was denied without a personal appearance; and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

The following members of the Board considered AFBCMR Docket Number BC-2015-03906 in Executive Session on 24 Jan 17 under the provisions of AFI 36-2603:

	Panel Chair
	Member
	Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 5 Aug 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC Retirements, dated 8 Apr 16.
	Exhibit D.  Memorandum, AFLOA/JAJM, dated 11 May 16.
	Exhibit E.  Memorandum, SAF/MRBP, dated 20 May 16, w/atchs.
	Exhibit F.  Letter, SAF/MRBR, dated 1 Jun 16.
	Exhibit G.  Letter, Applicant, dated 27 Jun 16, w/atchs.
	Exhibit H.  Memorandum, OSD(P&R), dated 20 Sep 11, w/atch.  
	Exhibit I.  Letter, SAF/MRBR, dated 30 Nov 16.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.